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MJM Real Estate Investments, LLC v. Metropolitan Government of Nashville and Davidson County

Court of Appeals of Tennessee, Nashville

March 29, 2018

MJM REAL ESTATE INVESTMENTS, LLC
v.
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, ET AL.

          Session February 5, 2018

          Appeal from the Chancery Court for Davidson County No. 16-645-I Claudia C. Bonnyman, Chancellor

         This appeal arises from a statutory writ of certiorari. The petitioner filed an application with the Metropolitan Historic Zoning Commission ("the Commission") to obtain a permit to renovate a 1935 industrial building in the Broadway Historic Preservation District in downtown Nashville. The Commission partially approved the application but required modifications before a permit would be issued. In pertinent part, the Commission denied the request to install vertically operable windows (similar to "roll up" garage doors) because they were not consistent with the style of the original 1935 windows. The Commission also required the construction of a parapet wall around the fifth story rooftop deck, rather than a railing proposed by the petitioner, to hide the building's rooftop additions because the additions were not compliant with the design guidelines for the district. Following an evidentiary hearing, the chancery court affirmed the Commission's decision. We affirm the chancery court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

          Kirk L. Clements, Nashville, Tennessee, for the appellant, MJM Real Estate Investments, LLC.

          Jon Cooper, Director of Law; Lora Barkenbus Fox, and Catherine J. Pham, Nashville, Tennessee, for the appellees, Metropolitan Government of Nashville and Davidson County, Tennessee and the Metropolitan Historic Zoning Commission.

          Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.

          OPINION

          FRANK G. CLEMENT JR., P.J., M.S.

         MJM Real Estate Investments, LLC ("Petitioner") seeks to renovate the building at 105 Broadway in downtown Nashville.[1] The subject property is located within the Broadway Historic Preservation District ("the District") where the Metropolitan Historic Zoning Commission ("the Commission") has jurisdiction "to insure the ongoing preservation of structures of historic value." M.C.L. § 17.36.100. Accordingly, the Commission must approve any changes made to the building through a permitting process. Tenn. Code Ann. § 13-7-407.

         The building at 105 Broadway was constructed in 1935 as a four-story brick warehouse with steel Hopper windows, a common feature of industrial buildings during that time. Significant to this case, a Hopper window operates on a hinge which tilts the window out or in; thus the window remains completely visible when open. Also significant to this case, the 1935 building had a flat roof hidden behind a parapet wall.

         Gaylord[2] purchased the property in 2000 and made substantial renovations to the exterior, leaving only the original brick, window openings, and parapet wall intact. Notably, Gaylord replaced the steel Hopper windows with modern industrial windows that did not open, and it added a partial fifth story rooftop deck and a partial sixth story, which was an enclosed space called an "imaginarium."[3] All of the changes made by Gaylord occurred before the historic overlay went into effect.

         The Broadway Historic Preservation District was created in 2007, at which time the Commission adopted the Broadway Historic Preservation District Design Guidelines ("the Design Guidelines"). The Design Guidelines provided that any further alterations to the buildings within the District should be in keeping with the original style of the building. Specifically, the Design Guidelines stated that rooftop additions could not exceed one story.

         In February 2016, Petitioner applied for a preservation permit with the Commission, requesting permission to make significant changes to the building's windows and rooftop additions. In pertinent part, Petitioner sought permission to replace the windows on the first and second floors with vertically operable windows that are similar to "roll up" garage doors. Petitioner also sought permission to partially expand the fifth and sixth floors and to add railings that were similar to those installed by Gaylord in 2000. Petitioner also wanted to convert the "imaginarium" into a guitar-shaped bar area, which would connect to a seventh story deck that was to be added as well.

         Petitioner's application for the permit was heard on March 16, 2016, and after considering the design plans, the Commission informed Petitioner that it would not permit the new windows to open vertically; however, it would approve NanaWall windows, which are folding windows that open horizontally. The Commission approved the expansion of the fifth and sixth floors as well as the addition of a seventh floor; however, it required Petitioner to replace a portion of the existing railing on the fifth floor with a parapet wall in order to hide the additional rooftop decks, which were not compliant with the Design Guidelines. The permit with the foregoing modifications was issued on June 10, 2016.

         Soon thereafter, Petitioner filed a statutory writ of certiorari in the Chancery Court for Davidson County, arguing that the Commission's decision was arbitrary and capricious. First, Petitioner argued that its proposed railings on the fifth floor were consistent with Gaylord's original design, and it made no sense for the Commission to require Petitioner to replace part of the railing with a parapet wall. Second, Petitioner argued that because the Commission is only charged with regulating appearance and not function, the Commission did not have the authority to regulate how the windows opened. Alternatively, Petitioner contended that if the Commission had the authority to regulate how the windows opened, the building had minimal historical value due to Gaylord's substantial renovations in 2000. Thus, replacing the windows with non-historical windows would not affect the current historical value of the building.

         At the hearing, the court heard testimony from Robert Steven Maxwell, the architect in charge of the renovation, and Sean Alexander, a historic preservationist with the Commission. After hearing the testimony and reviewing the evidence, the trial court affirmed the Commission's decision. Specifically, the court credited Mr. Alexander's testimony that the windows, when opened vertically, looked like a vacant hole in the wall, which significantly affected the appearance of the building. The court further ruled that

there is an implicit grandfather provision in the [Historic Preservation] Guidelines and in the statutes which indicate that the property or preexisting condition of property in 2007 [when the historic district was created] may be preserved by the owner, but when alterations and additions and other changes, replacements, take place, then those alterations, replacements, and buildings must be in keeping with the 1935, that is the historic building….And the Court finds here that since [Petitioner] wants to alter its year 2000 windows that it used to replace the historic windows…it must now alter them in compliance with the historic guidelines. And [Petitioner] has not carried its burden to show that it is entitled to a Preservation Permit allowing those roll-up windows, because they are not historic.

         As to the parapet wall, the court credited Mr. Alexander's testimony that the wall would hide the rooftop decks to make the building appear, from the street, as if it only had one rooftop addition, which would comply with the Design Guidelines.

         Petitioner filed a motion to alter or amend, arguing that the trial court erred by affirming the Commission's decision. Additionally, Petitioner argued that Tenn. Code Ann. § 13-7-408 and M.C.L. § 17.40.420 mandated that the Commission issue a preservation permit within thirty days of its March 16 decision to approve the renovations with conditions. Since the Commission did not issue the permit until June 10, Petitioner asserted that it was entitled to unconditional approval of its February 29 application. The trial court denied Petitioner's motion, and Petitioner appealed.

         Issues

         Petitioner presents nine issues for our review, which we have consolidated and rephrased as follows: (1) Did the Commission fail to timely issue a preservation permit in accordance with M.C.L. § 17.40.420 and Tenn. Code Ann. § 13-7-408; (2) Did the trial court err by affirming the Commission's decision to deny vertically operable windows; and (3) Did the trial court err by affirming the Commission's decision to require Petitioner to replace a railing with a parapet wall?[4]

         Standard of Review

         Tenn. Code Ann. § 13-7-409 states that "[a]nyone who may be aggrieved by any final order or judgment of the historic zoning commission…may have such order or judgment reviewed by the courts by the procedure of statutory certiorari." A chancery court's review under the statutory writ is by trial de novo. McCallen v. City of Memphis, 786 S.W.2d 633, 638 (Tenn. 1990). Here, "de novo" means that the chancery court's review is not limited to the administrative record. Tennessee Waste Movers, Inc. v. Loudon County, 160 S.W.3d 517, 520 (Tenn. 2005). The chancery court holds a new hearing "based upon the administrative record and any additional or supplemental evidence which either party wishes to adduce relevant to any issue." Id. (quoting Frye v. Memphis State Univ., 671 S.W.2d 467, 469 (Tenn. 1984)). If the trial court makes the required findings of fact, appellate courts review the trial court's factual findings de novo upon the record, accompanied by a presumption of the correctness ...


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